Tag: General Interest

11 Dec

Asthma Inhalers in the Principal’s Office: Rampant Rulitis

Hull & Hull LLP Estate & Trust, General Interest, Health / Medical, In the News Tags: , , , , , , , , , 0 Comments

At present, there is no legal framework in Ontario governing the storage of asthma inhalers within schools. The absence of such a framework shifts the decision-making into the hands of the individual school administrators and/or school boards. What has evolved as a result of this legal vacuum is a patchwork of asthma management plans.  Many of these plans lump asthma inhalers with other medications (incl. antibiotics, medications used to treat symptoms of ADHD, etc.), thus requiring them to be locked in the principal’s office. This inappropriate one-size-fits-all approach to medication storage in schools is a textbook example of ‘rulitis’: ‘a slavish adherence to rules and regulations that goes beyond common sense’ (with credit to André Marin, Ontario Ombudsman, for coining that apt phrase).

Within schools, the placement and storage of rescue inhalers in a secure, centralized location is problematic for a number of well-documented reasons, including: i) Storage of inhalers away from the person precludes the immediate use of the medication at the onset of symptoms. Centralized storage of asthma inhalers flies in the face of the fact that an inhaler delivers a dose of rescue medication, and thus should be considered a life-saving measure, not unlike an epinephrine auto-injector. It is impossible to overstate the differences in outcomes between immediate use of an inhaler and delayed use after symptoms have progressed; and ii) Students are apprehensive about asking for help accessing a centrally-stored inhaler due to embarrassment around being considered ‘medically vulnerable’ and the fear of being deemed disruptive by staff and/or peers. 

Sandra Gibbons and MPP Jeff Yurek (Elgin-Middlesex-London) have been collaborating on a private members’ bill which, if passed, will force every school board in Ontario to implement a comprehensive asthma policy, each of which must also permit a student to carry his or her own asthma medication on their person. On October 9, 2012, Gibbons’ son Ryan died after suffering a severe asthma attack during recess at his school in Straffordville.  Ryan’s attack evolved quickly, his classmates carried him to the principal’s office where his inhaler was kept, but Ryan was already unconscious. Ryan’s school, with tragic consequences, had a zero tolerance policy against inhalers, and had gone so far as to confiscate spare inhalers that he had brought to school just in case he suffered from an attack.  

        

In contrast to Ontario, the U.S. has three prongs of federal legislation in place allowing students to carry inhalers on their person: the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, and Title II of the Americans with Disabilities Act.  Approximately 6 million American children have asthma, and 200 of them die each year as a result of an asthma attack. The federal legislation is in place as much to save those 200 lives as it is to reduce outpatient visits to doctors and hospital E.R. visits (~4.6 million and 700,000 visits per yr, respectively). Across Canada, over half a million children are affected by asthma and approximately 20 children die each year as the result of an asthma attack. The Lung Association of Ontario estimates that 1 in 5 children have asthma in this province.

This week’s media coverage of Yurek’s proposed private member’s bill (“Ryan’s Law") has raised corollary questions regarding epinephrine auto-injectors (EpiPens) at schools, since they also deliver a rescue medication. Just last month, the U.S. passed the School Access to Emergency Epinephrine Law which encourages schools to carry ‘stock’ epinephrine (i.e. an undesignated supply).  Encouragement is in the form of financial incentives; schools that carry stock supplies will get preference for receiving federal grant monies. While Sabrina’s Law requires all school boards in Ontario to establish an anaphylactic policy, there is currently no provision in the province to allow schools to stock an undesignated supply of auto-injectors.  

Ryan’s Law passed second reading with all-party support at Queen’s Park on December 5, 2013 and will return for third reading some time in the spring of 2014.

Jenn Hartman, Medico-Legal Consultant 

* photo of Ryan Gibbons, from Tillsonburg News

Legal aside: It should be noted that both Sabrina’s Law and Ryan’s Law (as it has been tabled) include ‘Good Samaritan’ language which provides immunity from lawsuits for ‘any act done in good faith’ in response to an anaphylactic reaction or an asthma attack, respectively.

 

08 Nov

What’s the value in a Will? – Napoleon’s Will sold at auction

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We often hear about how the estates of dead celebrities are able to bring in vast amounts of money for years following the death of the famous individual. Forbes even publishes an annual list detailing which dead celebrities earn the most (Michael Jackson topped the list in 2013, bringing in approximately $125 million last year). While the idea of dead celebrities bringing in lots of money after they have died is itself not so unusual, a story reported in the Toronto Star this week caught my attention as it brought up a rather unconventional way for the estates of famous individuals to bring in some extra cash.

The Toronto Star reported that a copy of Napoleon Bonaparte’s Will was sold at auction this week in Paris, bringing in approximately $483,000.00 (more than twice what had been expected). The Will, dated April 16, 1821, apparently offered exceptional insight into Napoleon’s final days, including that he wanted his ashes spread over Paris’ Seine River “in the midst of the French people, whom I have loved so well” (they are instead interned in Paris’ Invalides monument).

The article raised an interesting concept for me, as I had never thought about what value might be contained in the physical document of the Will itself. A quick review online revealed that the sale of Napoleon’s Will was not an isolated event, and that as recently as May 2013 Mahatma Gandhi’s Will had sold at auction for £55,000.00.

My curiosity then lead me to eBay, where I discovered that not only could you buy copies of Wills from such figures as Robert E. Lee (no guarantee as to authenticity), but also those of more regular individuals from centuries past.

So let this be a lesson to all Estate Trustees out there for famous individuals. Short on cash? Wanting to make Forbes’ list next year? Why not try selling your famous individual’s Will. As to what impact selling your Will may have on your ability to administer the Estate, I will not comment.

The probate office must be sitting on a gold mine.

Thank you for reading.

Stuart Clark 

05 Nov

I’m not dead yet – When the court incorrectly declares you dead

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Although I am a couple of days late for Halloween, a real life story of the undead walking amongst us was simply too good to pass up.  The Los Angeles Times recently reported on a story about an Ohio man, who was declared dead by the court in 1994, recently having his application to reverse the declaration rejected by the courts.

In that case, the individual in question disappeared in the 1980s after losing his job and suffering from bouts of alcoholism. In 1994, no one having heard from the individual in quite some time, his ex-wife applied to the court to have him declared dead so that she and her two children could collect the individual’s death benefits from social security.

The individual reappeared in 2005, and was promptly told by his parents about him previously having been declared dead.  In order for him to get his driver’s license and social security back, he had to apply to the court to reverse the declaration.

Interestingly, despite the very much alive applicant himself appearing before the judge, the judge refused to reverse the declaration citing the fact that the law in Ohio does not allow the declaration to be reversed after the expiry of three years. As more than three years had passed from the declaration of death in this instance, the judge stated that there was no choice but to have the individual continue in his “undead” state.

In Ontario, the Declarations of Death Act, 2002, is the statute which governs declaring a missing individual dead. Unlike the Ohio statute, there appears to be no provision in the Ontario statute restricting a reversal of a declaration of death due to the passage of time.

While there is no restriction on the reversal of a declaration of death in Ontario due to the passage of time, section 6(1) of the Declarations of Death Act does provide that when an Order has been made declaring an individual dead, and their estate has been distributed, such a distribution is final even should the “deceased” individual subsequently be found alive. While section 6(3) grants the court special powers to order specific property be returned to the deceased individual, absent a specific court order to the contrary, the “deceased” individual’s property is now the property of those to whom it was distributed.

So let this be a lesson for all of the undead walking amongst us. While the Ontario court can reverse a declaration that you have died, if your Estate Trustee has distributed your assets in the interim, under most circumstances those assets are now the property of those individuals to whom they were distributed.  Who knows, maybe if you are nice to them they will let you visit your things.

Thank you for reading.

Stuart Clark 

19 Jul

I Wish I’d Played More Video Games

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The most common regrets that patients express on their deathbeds, according to a nurse who worked in palliative care, are

1.       I wish I’d had the courage to live a life true to myself, not the life others expected of me. 

2.       I wish I hadn’t worked so hard.

3.       I wish I’d had the courage to express my feelings. 

4.       I wish I had stayed in touch with my friends.

5.       I wish that I had let myself be happier.


Why would anyone regret not spending more time playing video games? 


In a “Ted Talks” exclusive, Jane McGonigal, a video game designer, explains how video games can lessen some of the top regrets expressed by dying patients. 

 

1.       I wish I’d had the courage to live a life true to myself, not the life others expected of me.  Ms. McGonigal argues that for many people, video games give them the chance to spend more time having fun with their family.  She states that a study finds that parents who spend time playing video games with their children have stronger real-time relationships with them. 

 

2.       I wish I hadn’t worked so hard.  A video game can provide people with a break from their everyday life. 

 

3.       I wish I’d had the courage to express my feelings.  Ms. McGonigal explains how avatars are a way for us to express our most idealized, true selves.  She points out that Stanford University has been studying how playing a video game with an avatar that reflects our idealized selves can change how we see ourselves in the real world, making us feel more courageous, ambitious, and committed to our goals. 

 

4.       I wish I had stayed in touch with my friends.  Many people use online social games to keep in daily touch with their real-life friends. 

 

5.       I wish that I had let myself be happier.  Ms. McGonigal states that according to a study by East Carolina University, online games can outperform pharmaceutical treatments for clinical anxiety and depression.  Playing for a minimum of 30 minutes a day could therefore make people feel happier. 

To listen to this interesting perspective on the potential value of playing video games to people’s quality of life, check out Ms. McGonigal’s talk at this link

Holly LeValliant

17 Jun

The End of the Secret Swiss Bank Account

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The End of the Secret Swiss Bank Account:

In the world of International banking, two the most terrifying phrases to be uttered in a board room are “money laundering” and “terrorist financing”. This is especially so for Swiss banks who this month found themselves caught between a rock and a hard place with the American’s Foreign Account Tax Compliance Act (FATCA).

FATCA allows the American Internal Revenue Service (IRS) to retrieve account information from non-US financial institutions holding accounts for US persons. Several FATCA provisions in tandem with the US Tax Code (particularly Title 26, US Code Section 6103 (i)) effectively sanction the disclosure of tax information to any federal agency for use in virtually any matter over which the agency has jurisdiction.  This therefore extends beyond tax to include criminal and administrative matters for the purposes of combating terrorism, as well as illegal trafficking activities related to money laundering.

By taking certain steps, the IRS may share bank data it gets from foreign banks under FATCA with other US agencies

Through this mechanism, many US federal agencies are given powers to seek ex parte orders to obtain access to tax return information in proceedings related to terrorism. Cooperation with foreign jurisdictions could facilitate such actions, and some notable experts, such as Manuel Ammann, professor of banking law at the University of St Gallen in Switzerland, have spoken out in favor of such cooperation through legislation allowing banks to exchange confidential information on American clients.

Legal expert mulls possible Swiss bank fallout

Ammann reasons that legislation permitting Swiss banks to simultaneously avoid violating domestic secrecy laws as well as possible criminal prosecution in the US is the best solution.

Swiss parliamentary approval of a cabinet-backed bill currently tabled would avoid a situation where Swiss banks can’t or won’t cooperate with US authorities, which Ammann believes could potentially lead to an indictment from the American justice system.  In the alternative, if such a bill is not given parliamentary approval, banks that wish to cooperate with US demands would be in violation of domestic laws: an option which is being espoused as the lesser of two evils, even when such violations could conceivably lead to the revocation of a bank’s license.

Pressure to comply with FATCA exists even when a bank’s ties to the US are indirect; through partnerships with US institutions involved as custodians, or connected banks. Retaliation from the US for refusal to cooperate with FATCA could effectively cut off Swiss banks from the US financial system as partners of banks in violation of US laws cut ties in fear of association with institutions attracting US federal criticism.

By taking advantage of a system very dependent upon trust with international partners, FATCA may effectively lead to the end of the Swiss banking industry’s key characteristics: its reputation for secrecy.

Thanks for reading,

Ian Hull 

13 Jun

SCC Refuses Pratten Sperm Donation Appeal

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The application by Olivia Pratten for leave to appeal to the Supreme Court of Canada has recently been refused, without reasons.  As such, Ms. Pratten’s quest to find the identity of her biological father has come to an end.

Ms. Pratten’s proceedings have been followed closely by our firm, with prior blogs, found here and here, chronicling her argument that children conceived through sperm donation, should have the same access to information as children who are adopted, and as such, a right to know their biological parent.

The Supreme Court of British Columbia held that anonymous sperm donation is “harmful to the child”, thereby striking down the BC legislation.  However, on appeal, the Supreme Court’s decision was overturned.

Given the SCC’s refusal, the British Columbia Court of Appeal decision now stands: there is no constitutional right to know the identity of one’s parents.

In a case out of the United States, described in an article found here, a motion was brought by the Kansas Department for Children and Families, seeking to have a sperm donor be declared a father so that he can be forced to pay child support.  In his defence, the sperm donor claims that he signed a contract with the recipients, waiving any parental rights and responsibilities that may have been attached to him as the biological father.

Interestingly, the donation made in this case was via Craigslist, not done anonymously through a sperm bank as was the case with Ms. Pratten.  Therefore, the two cases seem to be distinguishable on the basis of the anonymity of the sperm donor.

While I do not intend to blog about whether the SCC was right in refusing to hear Ms. Pratten’s appeal, it will be interesting to follow if future claims may be made, and how they may be able to differentiate themselves from those by Ms. Pratten.

Noah Weisberg

07 Jun

R.I.P.(D.)

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I recently went to see Fast & Furious 6. I expected there to be some pretty terrible previews. The movie is targeted at a male audience so I’m not the one they are trying to impress. That said, I’ve always found previews entertaining. In this case, I wasn’t disappointed. 

Certainly, the preview for the R.I.P.D. was in line with what I was expecting, a movie filled with fighting, guns, skimpily dressed women and so on. What I didn’t expect was my next blog topic, particularly with a movie that stars Ryan Reynolds, Jeff Bridges, Kevin Bacon and Mary-Louise Parker.

R.I.P.D. or the “Rest In Peace Department” is a department of the dead police force dedicated to protect and serve the living from arrogant, malevolent, bloodthirsty, evil spirits who refuse to move into the afterlife. An interesting, and yet terrifying concept. 

I’m sure this will make for an entertaining two hours. But…think about it. Even when you love your job, you love your job while still wishing for retirement. We spend a great deal of time on this blog, and in the estate planning/litigation field in general, discussing the “Freedom 55” and how to get there. This suggests to me that we all want a time to relax, to enjoy the spoils of a lifetime of effort.   If there is an afterlife, and if you get there, do you really want to do your job for eternity? What happened to the notion of eternal happiness? If I’m forced to live another life, I want one of relaxation and joy. 

Given the above (and accepting that these musings came from a movie preview), If you knew that you were doomed to spend the rest of your existence (in this realm or another) doing what you do now, would you be content, or would you brushing up your resume?

Thanks for Reading,

Nadia M. Harasymowycz

31 May

Government Support – The Cost of Long-Term Care

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Long-term care is something many of us will be faced with, either for ourselves or for a loved one.  There are various care options available to seniors depending on their needs and financial means, such as home-care, a retirement facility or a nursing home – all with differing cost levels.

I thought I would share some handy facts I picked up from a recent article about the government’s role and long-term care costs:

 

 ·                     health care is regulated at the provincial level, so each province has different rules and regulations; the federal government distributes funds to the provinces based in part upon the health costs of each;

 

·                     people with higher incomes pay higher monthly costs for a nursing home or home care;   

 

·                     income tax credits and deductions can provide tax relief for certain components of care costs, with more relief for those with lower incomes; and

 

·                     your spousal income and assets will impact care costs, as provinces look at a couple as opposed to just the individual requiring care.

 

Thanks for reading and have a great weekend!
 
Natalia Angelini

17 May

525,600 minutes

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I recently attended the production of ‘Rent’ at the Lower Ossington Theatre.  The musical has been a favourite of mine for years.  I know the words to almost all of the songs, albeit if I have to sing them, it is fairly off key.  One of the songs in the musical (which gained some popularity at the time the musical was originally on Broadway in 1996) is called Seasons of Love.  It contemplates how you measure someone’s life and posits, "is it…

in daylights, in sunsets, in midnights,
in cups of coffee? 
In inches, in miles, in laughter, in strife?

In five hundred twenty-five thousand
six hundred minutes
How do you measure
A year in the life?

How about Love?…"

This song has always made me think, and since delving into the world of estate litigation, even more so.  As part of our jobs, we routinely focus on specific facts.  When was he born? When did he marry? When were his children born?  When did he make a Will?  How long did he spend in hospital?  When did he die?  These can all be placed neatly into a chart, that gets turned into a report, that gets turned into an affidavit, that gets turned into a factum, that gets turned into oral argument.  All based on pure facts.  Yet, I saw this photo yesterday and I was reminded again of the lyrics recited above. 

 

We are so often focused on the tidbits of information that make up a legal argument, that we can forget that the facts are parts of someone’s life.  If you knew your life was going to be measured, how would you want that story told?  Would it change how you spend the next 525,600 minutes?

Something to think about,

Nadia M. Harasymowycz 

25 Apr

Invasive Procedures

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About 90,000 people die in Ontario every year. Of those, about 16,000 are reported to the Coroner’s Office (or roughly 17%). According to the Office of the Chief Coroner Report for 2009-2011, in 2010, there were 16,415 coroner’s investigations. 

Many people do not want to be autopsied – whether it is because of religious beliefs or other personal wishes. However, in Ontario the range of cases which are supposed to be reported to the Coroner are quite broad.

Under the s. 10 of the Coroner’s Act, anyone who is aware that person died of the following causes is required to report that death to the Coroner’s Office:

 (i) violence,

(ii) misadventure,

(iii) negligence,

(iv) misconduct, or

(v) malpractice;

(b) by unfair means;

(c) during pregnancy or following pregnancy in circumstances that might  reasonably be attributable thereto;

(d) suddenly and unexpectedly;

(e) from disease or sickness for which he or she was not treated by a legally qualified medical practitioner;

(f) from any cause other than disease; or

(g) under such circumstances as may require investigation.

In addition, there are a number of other situations where autopsies are actually prescribed by legislation – including when a woman dies as a result of pregnancy or childbirth, when a person dies while in custody, if a person dies in hospital and a medical mistake is suspected, or when an employee dies on the job as a result of a workplace accident. 

Once a death is reported, the coroner will then decide, usually by phone, whether to attend at the scene in order to look at the body and determine if an autopsy should be performed. 

The Ontario Coroner’s Code of Ethics does provide that consideration should be given to the beliefs or religious views of the deceased, but ultimately it is always up to the Coroner to make the call:

Coroners in the exercise of their duties, shall respect the beliefs and/or religious views of the deceased, and where an investigation is for reason only that the deceased person has not had medical attendance prior to the hour of death, shall recognize that the exercise of this free choice is not in itself reason for further investigation or autopsy, unless there is evidence of other conditions stipulated in section 10 of the Coroners Act, 1990.

In California, the State of California Government Code Section 27491.43 goes further and provides that unless foul-play or a contagious disease are suspected as the cause of death, if a person has prepared a “certificate of religious beliefs” stating that they oppose autopsies – which must be signed by the Deceased and witnessed by two people – the Coroner shall not perform the autopsy.  

In Ontario it is always a matter of balancing the public interest with the private wishes of the individual. Like California, in cases where foul-play or a contagious disease is suspected, it would be very unlikely that an autopsy could be avoided.   

For those who have an objection to being autopsied, the best advice is to make your wishes known to your next-of-kin. You might also consider preparing a document similar to the Certificate of Religious Beliefs, stating that you object to being autopsied. While there is no guarantee that it will be effective in preventing an autopsy, it may influence the Coroner in their exercise of discretion.

Thanks for Reading!

Moira Visoiu

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